A Supreme Courtship Former adversaries David Boies and Theodore Olson unite to make marriage equality the law of the land. roposition 8 litigators David Professorship of Law. Boies would also Boies LLM ’67 and Theodore Olson speak at both the 2013 University Comjoined MSNBC host Rachel Mad- mencement and the NYU Law Convocadow at NYU School of Law for an tion. (See story on page 106.) in-depth interview about the future of marWith no fewer than 60 Supreme Court riage equality. The October 2012 conversa- cases under their belts, they spoke authortion, which preceded oral arguments at the itatively and confidently about their Supreme Court six months later, ranged chances. “The Supreme Court has made widely over the course of an hour, touching erroneous decisions in its history,” said on points such as how to win over Justice Olson, pointing to rulings such as Plessy Scalia on the issue, the public’s support for v. Ferguson, the Dred Scott decision, and gay marriage, and the worst-case scenario the upholding of the government’s right to for this legal challenge. intern Japanese Americans. But in the end, The high-profile team of Boies, current he said, the Supreme Court will struggle chairman of Boies, Schiller & Flexner and with these issues and ultimately do the in the late 1970s chief counsel of the Sen- right thing. “We believe the Supreme Court ate Judiciary Committee, and Olson, who will get it right. David and I are writing no is now partner at Gibson, Dunn & Crutcher justice of this court off,” Olson continued. and during the presidency of George W. “We have a little joke—David will ensure Bush was US solicitor general, is especially that we get the ones that voted his way on remarkable because the two attorneys had Bush vs. Gore, and I’ll get the side of the argued on opposite sides of Bush v. Gore court that I got, so it will be unanimous.” in 2000. Between them, the men have As for how to convince the conservatives argued many of the landmark cases of our to support the issue of marriage equality, time, including Citizens United v. Federal Boies noted that Justice Scalia has said that Election Commission and United States v. his job is not to impose his own personal Microsoft. Both were named to Time’s list views but to enforce the constitutional of the 100 most influential people in the guarantees that we have. “I think it’s easy world in 2010. They also have strong ties to recognize the constitutional guarantee to NYU Law, where Olson is a board mem- of the right to marry. What we now have ber of the Dwight D. Opperman Institute to do is recognize that there’s no basis to of Judicial Administration, and Boies is a discriminate based on sexual orientation,” trustee and has endowed the David Boies said Boies. “That is an argument that isn’t
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Republican or Democrat, conservative or liberal. It is an argument that appeals to everybody who shares the basic principle that all Americans do of equality under the law, justice for everybody.” Olson and Boies said they would aim for a unanimous decision, but they acknowledged that in a realistic worst-case scenario, the Supreme Court might deny same-sex marriage as a constitutional right and rule that states must decide the issue. (In fact, in June, the Court ruled 5–4 that Proposition 8 supporters did not have standing to appeal the 2010 district court ruling, meaning that the lower court’s legalization of same-sex marriage in California would be upheld and that only California was affected by the Supreme Court opinion.) In conclusion, said Boies, we all have a lot of work to do to reverse the “pain and evil” of this discrimination against gays and lesbians. “I love talking to old, straight white guys about this issue,” quipped Maddow, who is openly lesbian. The keynote panel with Boies, Olson, and Maddow kicked off the “Making Constitutional Change: The Past, Present, and Future Role of Perry v. Brown” symposium organized by the NYU Review of Law & Social Change in collaboration with Professor Kenji Yoshino, NYU OUTLaw, and Epic Theatre Ensemble. The two plaintiffs in the headlining case, Kris Perry and Sandy Stier, were present throughout the daylong event and the previous evening, when members of the Epic Theatre Ensemble performed a stage reading of 8, a play by Oscar-winning screenwriter Dustin Lance Black based on the Proposition 8 trial transcripts. Perry, whose surname is now shorthand for one of the most famous cases in modern legal history, spoke of her experience: “Being somebody who’s different from other people and then trying to go into a courtroom to say, ‘I need to be protected’ was something I thought I’d never do. So the good thing about the case has been having straight lawyers say, ‘This is not OK. You need to fight back and we’re going to help you, and you don’t need to be so good at coping anymore.’ For Sandy and I to be given that permission by two very sensitive, caring attorneys really changed our lives in a way that we would never have predicted.” Appearing on CNN eight months after the NYU Law event, and only a few days after the June ruling, Boies reaffirmed his dogged determination to continue to fight for the right to marry: “Our goal is to have marriage equality that’s guaranteed by the United States Constitution enforced in every single state in the union.”